Pay discrimination in the case of a process specialist (TAS 93/2013, issued on 10 June 2014)
A process specialist working for a city authority asked the Ombudsman for Equality to determine whether the city was treating him in a way that violates the Equality Act by paying him a lower role-specific pay than the one paid to the IT specialist. Both specialists were covered by the municipal collective agreement for public servants (KVTES), but they were not under the same tariff. The role-specific pay of the process specialist was assigned to the KVTES tariff 01HAL033 Tier 3, whereas the IT specialist role was assigned to the unclassified tariff.
Another person as a reference point
A key question in this case was whether the process specialist could use the pay of the IT specialist as a valid reference point. The city authority's rationale was that the work of the process specialist should not be compared to that of the IT specialist, since the roles were assigned to different tariffs. The city noted that in the municipal sector, comparisons are carried out within tariff groups and not between them. According to the city, KVTES and, ultimately, the employer determine the tariffs assigned to individual roles. The city referred to a statement issued by Local Government Employers, which states that the evaluation of the demands of a job involves evaluating roles assigned within the same tariff and comparing them with one another.
The Ombudsman for Equality determined that the process specialist could use the IT specialist's role as a valid reference point. In equality legislation, the underlying premise is that an employee can compare his or her work to that of another employee of the same employer, and if the roles are identical or equivalent, both should be paid the same. According to the Ombudsman, the case did not involve any factors which would prevent this kind of comparison.
Although the roles were assigned different tariffs in the collective agreement, it does not present an obstacle to comparing the roles for the purposes of equality legislation. In Enderby C-127/92, a case ruled on by the European Court of Justice, the tariffs of the two roles under comparison were even determined by different collective agreements. Further, the fact that the roles were assigned to different tariffs - essentially due to the employer's decision - did not prevent such a comparison. If that were the case, the employer could prevent employees from demanding equal pay simply by assigning their roles under different tariffs. The right of the process specialist to have the same role-specific pay as the IT specialist therefore depended on whether the two roles could be considered to be equally demanding.
Comparison of job demands
Based on the reports received, the Ombudsman for Equality made some observations about the comparison of the job demands of the process specialist and IT specialist roles and the rationale presented.
Among other matters, the Ombudsman drew attention to the divergent rationales in the assessments of the two roles. When assessing the impact of the IT specialist's duties, the city appeared to place emphasis on the various dimensions of the work processes to which he contributed. This was in contrast to the impact assessment of the process specialist's role, where the city instead emphasised the fact that the responsibility for the sets of tasks in which the process specialist was involved was ultimately borne by someone else.
Further, the Ombudsman noted that by basing the impact assessments primarily on financial factors, the city overlooked some of the dimensions of the impact of the process specialist's role. Internal control and oversight, risk management tasks and strategy work, all of which the project specialist was involved in, are functions designed to ensure that the local authority and its organisations achieve their targets and that the necessary operational prerequisites are in place - factors which are crucial to the local authority's operations. For example, the tasks of the process specialist which relate to internal control could have a significant financial impact.
The Ombudsman for Equality has been informed that the parties have reached an agreement on the process specialist's pay.